Morsillo v. Progressive Financial Services, Inc.

Filing 14

ORDER granting in part and denying in part 13 Motion for Default Judgment. Signed by Judge Robert N. Scola, Jr on 5/21/2018. (vmz)

United States District Court
for the
Southern District of Florida
Shannon Morsillo, Plaintiff,
v.
Progressive Financial Services, Inc.,
Defendant.

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Civil Action No. 18-60658-Civ-Scola

Order on Motion for Default Judgment
The Plaintiff Shannon Morsillo seeks a final default judgment against the
Defendant Progressive Financial Services, Inc. (ECF No. 13.) Previously, on
April 25, 2018, the Clerk of Court entered a default against the Defendant. (See
ECF No. 11.) The Defendant has not sought to set aside the default against it.
Having reviewed the motion, the record, and the relevant legal authority, the
Court grants in part and denies in part Morsillo’s motion for default
judgment (ECF No. 13.)
1. Background
The complaint alleges that the Defendant is a debt collector that
robocalled the Plaintiff’s cellular phone twenty (20) times since 2014 without
express consent, and asking for an individual named Beverly Plummer. (See
Compl., ECF No. 1.) Morsillo requested that the Defendant stop calling her
phone, but the Defendant continued to make the unwanted calls. (Id.) Morsillo
was charged for receiving the calls and the Defendant wasted her time by
continuing to call. (Id.) As a result, the Plaintiff asserts claims for violation of
the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, the Fair
Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692 et seq., and the
Florida Consumer Collection Practices Act (“FCCPA”), Fla. Stat. §§ 559.55 et
seq. The Plaintiff therefore seeks statutory damages, and a finding that the
Defendant willfully or knowingly violated the TCPA, entitling her to treble
damages.
2. Legal Standard
“A defendant, by his default, admits the plaintiff’s well-pleaded
allegations of fact,” as set forth in the operative complaint. Eagle Hosp.
Physicians, LLC v. SRG Consulting, Inc., 561 F.3d 1298, 1307 (11th Cir. 2009).
In issuing a default judgment, a court may award damages “without a hearing
[if the] amount claimed is a liquidated sum or one capable of mathematical
calculation,” as long as “all essential evidence is already of record.” S.E.C. v.
Smyth, 420 F.3d 1225, 1231, 1232 n.13 (11th Cir. 2005) (quoting Adolph Coors

Co. v. Movement Against Racism & the Klan, 777 F.2d 1538, 1544 (11th Cir.
1985)). However, the Court must ensure that there is a sufficient basis in the
pleadings for the particular relief sought. Tyco Fire & Sec., LLC v. Alcocer, 218
F. App’x 860, 863 (11th Cir. 2007).
3. Analysis
A. TCPA
The TCPA states that “[i]t is unlawful for any person to “make any call
(other than a call made . . . with the prior express consent of the called party)
using any automatic telephone dialing system or an artificial or prerecorded
voice . . . to any telephone number assigned to a . . . cellular telephone service.”
47 U.S.C. § 227(b)(1)(A)(iii). The purpose of the TCPA was to strike a balance
between protecting the privacy of individuals while still permitting legitimate
telemarketing practices. Tel. Consumer Prot. Act of 1991, Pub.L. No. 102-243,
§ 2, 105 Stat. 2394 (1991). In enacting the TCPA, Congress considered
evidence that individuals “consider automated or prerecorded telephone calls,
regardless of the content or the initiator of the message, to be a nuisance and
an invasion of privacy.” Id. Congress found that banning automated calls
“except when the receiving party consents to receiving the call . . . is the only
effective means of protecting telephone consumers from this nuisance and
privacy invasion.” Id. Thus, to make a claim under the TCPA, a plaintiff must
show that “(1) a call was made to a cell or wireless phone, (2) by the use of any
automatic dialing system or an artificial or prerecorded voice, and (3) without
prior express consent of the called party.” Augustin v. Santander Consumer
USA, Inc., 43 F. Supp. 3d 1251, 1253 (M.D. Fla. 2012).
Based upon the well pled allegations in the complaint, the Plaintiff
adequately establishes that the Defendant violated the TCPA. The Plaintiff
specifically alleges that the Defendant made at least twenty calls to her cell
phone without her prior express consent, using an automatic telephone dialing
system (ATDS) with a pre-recorded voice. (Compl., ECF No. 1 ¶¶ 23, 37, 42.) In
addition, the Plaintiff alleges that she repeatedly requested that the Defendant
stop calling her, and that she was not “Beverly Plummer.” (Id. ¶¶ 27-28.) Thus,
the Plaintiff is entitled to an award of statutory damages in the amount of
$500.00 for each violation.
The Plaintiff requests an award of $500.00 for the first call placed by the
Defendant, and treble damages ($1,500.00) pursuant to 47 U.S.C. § 227(b)(3)
for each of the nineteen subsequent calls she received after informing the
Defendant that it was calling the wrong person and asked the Defendant to
please stop calling. Such conduct, the Plaintiff contends, amounts to knowing
or willful violation of the TCPA. The Court disagrees. Indeed, the “requirement

of willful or knowing conduct requires the violator to know he was performing
the conduct that violates the statute.” Lary v. Trinity Physician Fin. & Ins.
Servs., 780 F.3d 1101, 1107 (11th Cir. 2015). The complaint does not
adequately allege that the Defendant knew it was calling the Plaintiff’s cell
phone. While the Plaintiff does allege that she repeatedly requested that the
Defendant stop calling her cell phone (Compl., ECF No. 1 ¶ 43), this allegation
is inconsistent with other allegations that the Plaintiff told the Defendant that
she was not Beverly Plummer and to stop calling Plaintiff or “this number.”
(Compl., ECF No. 1 ¶¶ 27-28.) Moreover, the Plaintiff has not provided an
affidavit, or other evidence for the Court’s consideration, from which it can
otherwise determine the issue of the Defendant’s willfulness or knowledge. The
mere allegation that the Defendant willfully or knowingly violated the statute is
a legal conclusion, which the Court need not accept as true. Id. (citing
Nishimatsu Constr. Co., Ltd. v. Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th
Cir. 1975)). Thus, the Plaintiff is not entitled to treble damages for a willful
violation; rather, she may recover $500.00 per call, or a total of $10,000.00 for
the Defendant’s violations of the TCPA.
B. FDCPA
Congress enacted the FDCPA “to eliminate abusive debt collection
practices by debt collectors, to insure that those debt collectors who refrain
from using abusive debt collection practices are not competitively
disadvantaged, and to promote consistent State action to protect consumers
against debt collection abuses.” 15 U.S.C. § 1692(e). In order to prevail upon a
claim under the FDCPA, a plaintiff must show: (1) that she has been subject to
a collection activity arising from a consumer debt; (2) that the defendant is a
debt collector as defined by the FDCPA; and (3) that the defendant has
participated in an act or omission prohibited by the FDCPA. Pescatrice v.
Orovtiz; 539 F. Supp. 2d 1375, 1378 (S.D. Fla. 2008) (Cohn, J.). The Plaintiff
claims that the Defendant violated section 1692d(5), which prohibits “[c]ausing
a telephone to ring or engaging any person in telephone conversation
repeatedly or continuously with intent to annoy, abuse, or harass any person
at the called number,” and section 1692f, which prohibits the use of “unfair or
unconscionable means to collect or attempt to collect any debt.”
Based upon the allegations in the complaint, the Plaintiff is entitled to
judgment on her FDCPA claim because she adequately alleges that the
Defendant continued to call her in relation to attempts to collect a debt owed
by Beverly Plummer, even after the Plaintiff informed the Defendant that she is
not that individual. See Miljkovic v. Shafritz & Dinkin, P.A., 791 F.3d 1291,
1302 (11th Cir. 2015) (“It follows that if ‘any person’ is entitled to redress under

the FDCPA, then all persons must be entitled to protection under it—be it the
consumer under § 1692c, or any person who is mistreated in [] connection with
the collection of any debt under §§ 1692d-1692f.”) (internal citation omitted).
Moreover, the Court determines that the Plaintiff is entitled to the damage
amount she requests—$1,000.00—based upon the Defendant’s continuing to
call the Plaintiff after she asked for the calls to stop.
C. FCCPA
The Plaintiff's claim under the FCCPA rests on two subsections of Florida
Statutes section 559.72. (See Compl., ECF No. 1 ¶¶ 78-80). The conduct
prohibited includes “[w]illfully communicat[ing] with a debtor . . . with such
frequency as can reasonably be expected to harass the debtor” and any
“[c]laim, attempt or threat[] to enforce a debt when such person knows that the
debt is not legitimate, or [to] assert the existence of some other legal right when
such person knows that the right does not exist.” Fla. Stat. §§ 559.72(7), (9).
Similar to the FDCPA claim, the Plaintiff alleges that the Defendant violated the
FCCPA by continuing to call after she specifically requested to stop being
called, and in addition, that the Defendants calls continued even after she
notified the Defendant that she was not the individual whom they were
attempting to reach. Therefore, the Plaintiff is entitled to an entry of judgment
for a violation of section 559.72(9).
Similar to the FDCPA, the Court may allow statutory damages up to
$1,000.00 for violation of the FCCPA, which is the amount the Plaintiff
requests. See Fla. Stat. § 559.77(2). In making this determination, the Court
considers the frequency and persistence of noncompliance as well as the
nature of the noncompliance, including whether the violation was intentional.
See id. For the same reasons discussed for the FDCPA claim, the Court awards
$1,000.00 in statutory damages for the Defendant’s violation of the FCCPA.
4. Conclusion
Accordingly, the Court grants in part and denies in part the Plaintiff’s
motion for default judgment (ECF No. 13). The Plaintiff is entitled to recover
$12,000.00 from the Defendant for violations of the TCPA, FDCPA, and FCCPA.
The Court will enter judgment by separate order.
Done and ordered at Miami, Florida, on May 21, 2018.
________________________________
Robert N. Scola, Jr.
United States District Judge

Copy to:
Progressive Financial Services, Inc.
c/o Corporation Service Company
1201 Hays Street
Tallahassee, Florida 32301